Types of Evidence

1. Types of Evidence From Arraignment to Verdict

2. Self-Incrimination • The Canada Evidence Act - regulates rules of evidence (1893). Applies to federal jurisdictions. • Self-incriminating evidence is evidence that would directly or indirectly help to prove the guilt of the person giving the evidence. • The evidence cannot be used in another court case except when the charge is perjury.

3. Privileged Communication • A spouse can never be compelled to give evidence concerning communication that took place during the marriage. • The spouse may give evidence for the defence. • Exceptions: crimes of violence against the spouse, certain sex crimes, some offenses committed against minors.

4. Similar Fact Evidence • Cases where the accused committed a similar offence in the past can be used to show the possibility of such an act being committed again. • Can be used to overcome defence claims of mistake or accident. • Generally past conduct evidence is not admissible unless it has significant relevance to the case .

5. Hearsay Evidence • What someone other than the witness said or wrote; generally not admissible • Exceptions: • out-of-court statement can be admitted as proof only that a statement was made. • If the witness is quoting a person who is about to die, as long as the evidence would have been admitted if the person had lived.

6. Opinion Evidence • Unless the witness is qualified as an expert, opinion evidence is not admissible. • Expert evidence must be relevant and necessary in assisting the judge or jury to come to a decision.

7. Character Evidence • Restrictions on the Crown: • May not follow a path of questioning that would indicate the criminal nature of the character of the accused. • Can be admitted by the defence to support the credibility of the accused and as the basis of an inference that the accused is unlikely to have committed the offence. However, if the defence introduces evidence of good character, the Crown may introduce evidence of previous convictions.

8. Photographs • May be entered as evidence if they are identified as being an accurate portrait of the scene of the crime. • A judge has the right not to admit photographs that are meant to inflame the jury.

9. Surveillance • Can be used as long as the procedures outlined in the Criminal Code were followed. • The Code prohibits the interception of private conversations through listening devices except when one of the parties to the conversation consents or there is authorization by court order • Video surveillance can be entered as evidence. A warrant is needed to set up video surveillance on private property.

10. Polygraph Evidence • In R. v. Phillion (1977), the Supreme Court ruled that the results of a polygraph test would be hearsay and therefore inadmissible.

11. Confessions • An acknowledgement by the accused of the truth of the charge or of some essential part of it. • Inculpatory statement: an admission • Exculpatory statement: a denial • If the accused is not told of his rights upon arrest, and then gives a statement, the statement is inadmissible • The manner in which the confession is obtained may also affect its validity as evidence.

12. Illegally Obtained Evidence • Much debated since the passing of the Charter of Rights and Freedoms • Depends on whether the reasonable person, fully informed of the facts, would be shocked if a judge allowed the evidence to be admitted. • All information from All About Law: Exploring the Canadian Legal System, 4th Edition, Dwight L. Gibson (et al)